Citation Nr: 0401561
Decision Date: 01/15/04 Archive Date: 01/28/04
DOCKET NO. 96-15 913 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently rated as 50 percent
disabling.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
Rhonda M. Kauf, Associate Counsel
INTRODUCTION
The veteran had active service from June 1970 to August 1972.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a June 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York, which denied the benefits sought on
appeal.
Initially, the Board observes that in a December 2003 brief,
the veteran's representative raised an informal claim for
entitlement to a total disability evaluation based on
individual unemployability due to service-connected
disability (TDIU). This matter has not yet been adjudicated,
and so the Board refers this matter to the Agency of Original
Jurisdiction (AOJ) for all necessary action.
This appeal is REMANDED to the RO via the Appeals Management
Center in Washington, DC. VA will notify you if further
action is required on your part.
REMAND
A preliminary review of the record reveals a need for further
development of this case prior to final appellate review by
the Board.
The Board observes that the veteran has not been afforded a
VA psychiatric examination to assess the severity of his
service-connected post-traumatic stress disorder (PTSD)
during the pendency of this claim. (Although this was
apparently the result of the veteran's incarceration for much
of this time, the veteran reported in April 2003 that he has
now been released from prison.) Further, a complete
evaluation of this claim under all applicable VA laws and
regulations requires a current assessment of the effect of
the veteran's PTSD on his ability to obtain and maintain
employment, and there is little to no current medical
evidence of record that sufficiently addresses this point.
Furthermore, the record reveals that after the RO contacted
Fishkill Correctional Facility in order to obtain the
veteran's record of treatment for PTSD from July 1998 to the
present, a response was received in July 2003, indicating
that the facility required the submission of a new (updated)
consent form prior to its release of such records to VA. By
July 2003, however, the veteran's claims file had already
been transferred to the Board, so the RO was unable to
undertake any additional action to obtain these records. The
Board also notes that, while the record contains a fair
amount of records addressing the veteran's treatment from
approximately 1995 to 2001, there do not appear to be any
such records in the claims file that are representative of
treatment received from May 2001 to April 2003 (with the
exception of an April 2003 discharge report). The Board
notes that these records, if available, should be obtained
for the claim.
The record also reveals that the veteran's claims file was
transferred to the Board in July 2002. Thereafter,
additional evidence was associated with the file, evidence
that was not considered by the RO in its review of this
matter, including, most importantly, an April 2003 discharge
summary from the Central New York Psychiatric Center. There
is no indication, however, that the veteran has waived his
right to AOJ consideration of any such evidence prior to its
review by the Board. A remand of the claim is therefore
required on this ground as well. See Bernard v. Brown, 4
Vet. App. 384 (1993); see also Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003).
Therefore, in order to give the veteran every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, this case is REMANDED for
the following actions:
1. The veteran should be requested to
provide the names and addresses of all VA
and private medical care providers who
have treated him for PTSD since April
2003. After receiving release(s) from
the veteran (where required), all
necessary efforts should be undertaken to
associate these records with the claims
file.
2. The veteran should also be requested
to execute a new release form in order to
obtain his record of medical treatment
for PTSD from July 1998 to the present
(but especially concerning any record of
treatment dated from May 2001 to April
2003), as received through Fishkill
Correctional Facility. After the
appropriate release form is secured, the
records should be requested by contacting
Karen Trimble, H1MT, I, RMU Medical
Records, at Fishkill Correctional
Facility, Box 307, Beacon, New York
12508. All necessary efforts should be
undertaken to associate these records
with the claims file.
3. After the development requested above
has been completed to the extent
possible, the veteran should then be
afforded a VA psychiatric examination in
order to assess the current severity and
manifestations of his service-connected
PTSD. Any and all indicated evaluations,
studies and tests deemed necessary by the
examiner should be accomplished. The
examiner should also provide an opinion
as to the effect of the veteran's PTSD on
his ability to obtain and maintain
employment. The claims file must be made
available to the examiner for review of
pertinent documents therein in
conjunction with the examination.
4. When the development requested above
has been completed to the extent
possible, the claim should be
readjudicated. If the benefits sought
are not granted, the veteran and his
representative should be furnished a
Supplemental Statement of the Case, and
be afforded a reasonable opportunity to
respond before the record is returned to
the Board for further review.
The purpose of this REMAND is to obtain additional evidence,
and the Board does not intimate any opinion as to the merits
of the case, either favorable or unfavorable, at this time.
The veteran is free to submit any additional evidence and/or
argument he desires to have considered in connection with his
current appeal. Kutscherousky v. West, 12 Vet. App. 369
(1999). No action is required of the veteran, however, until
he is so notified.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the United States Court of Appeals for Veterans Claims (the
Court) for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
2002) (Historical and Statutory Notes). In addition, VBA's
Adjudication Procedure Manual, M21-1, Part IV, directs the
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.43 and
38.02.
_________________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).